Uttarakhand High Court

Chait Ram Goswami vs State Of Uttarakhand And Another on 30 April, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

     HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Revision No. 272 of 2011

Chait Ram Goswami                             ...Revisionist

                              Versus

State of Uttarakhand and another              ...Respondents

Present:-
            Mr. Sandeep Tandon and Ms. Poonam Rana, Advocates
            for the revisionist.
            Mr. Pramod Tiwari, Brief Holder for the State.


                                   JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

judgment and order dated 20.09.2011, passed in Criminal

Revision No. 3 of 2011, State of Uttarakhand Vs. C.R.

Goswami, by the court of District and Sessions Judge, Pauri

Garhwal ("the second revision"). By it, an order dated

30.11.2010 of the Trial Court was set aside and the matter

was remanded for hearing afresh, in accordance with law.

2. Heard learned counsel for the parties and perused

the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows:-

On 29.12.2005, the forest officials found a dead

elephant. It was noticed that its trunk had touched the live

electric wire that is how the death took place. The Divisional

Forest Officer filed a complaint under Section 55 of the Wild

Life (Protection) Act, 1972 ("the Act") against the revisionist,

which is basis of Criminal Case No. 310 of 2009, in the court

of Additional Chief Judicial Magistrate, Kotdwar, District

Pauri Garhwal ("the case").

In the case, on 01.05.2008, the court passed an order

that there are sufficient grounds to frame charge under

Section 51 of the Act against the revisionist. That order dated

01.05.2008 was challenged by the revisionist in Criminal

Revision No. 11 of 2008, Chait Ram Goswami Vs. State of

Uttarakhand and others, in the court of District and Sessions

Judge, Pauri Garhwal ("the first revision"). The first revision

was allowed on 25.02.2010. The matter was remanded to the

court below for deciding the matter afresh.

On 30.11.2010, the trial court, after hearing the parties,

discharged the revisionist. That order was challenged in the

second revision. In the second revision, the court observed as

follows:-

"11- The perigee in law to frame a charge against any person is to see and consider that whether all ingredients of any offence are completed or not, if completed then a change must be framed. The act of the respondent is not covered within the purview of the offence under special act; wild life (protection Act) 1972, but it come within the purview of mischief. Section 425 IPC defines the term "mischief" under the definition of the offence of mischief, their must be an intention or knowledge. If any person does any act with knowledge that he is likely to cause wrongful

loss or wrongful damage to any person injuring any property, then if is said that he has committed an offence section 428 IPC also defines mischief by killing or maiming animal of the value of ten rupees. This Section provides as under:-

Whoever commits mischief by killing maiming or rendering useless any animal or animals of the value of ten rupees or up wards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"

12. To frame a charge U/s 428, the necessary ingredient must be (1) mischief by killing of any animal, (2) the value of the animal must be ten rupees or upwards. If the above two ingredients are fulfilled the offender should be punished u/s 428 of the Indian penal code. In the present case, the negligent act of the respondent comes within the purview of section 428 IPC, and a sufficient case is made out against the respondent to frame a charge under the said section. Thus in my opinion, the learned lower court has committed infirmity and illegality while passing the impugned order. The said order, therefore deserves to be set aside accordingly."

4. After making these observations, the revision was

allowed and the order dated 30.11.2010 passed in the case

was set aside and the matter was remanded to the court

below.

5. Learned counsel appearing for the revisionist would

submit that no offence under Section 428 IPC is made out. He

would submit that no mischief was committed by the

revisionist. It is not even the prosecution case. According to

the prosecution, it is the case of the negligence only. It is

argued that due to rains, the stones and sands got

accumulated below the electric line raising the ground level

and that is how the elephant came in contract with the live

electric wire. There has been no negligence or mischief on the

part of the revisionist.

6. Learned State counsel would submit that there is

no perversity or illegality in the impugned order. Therefore,

the revision deserves to the dismissed.

7 By the impugned order, an observation has been

made that a case under Section 428 IPC is made out against

the revisionist. Section 428 IPC provides for punishment in

the cases of killing and maiming of animals. Sections 425 and

428 IPC are as follows:-

"425. Mischief.-Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

"Explaination1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.

428. Mischief by killing or maiming animal of the value of ten rupees.- Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

8. A bare perusal of Section 425 IPC makes it

abundantly clear that the intention and knowledge are two

essential ingredients of it with further attributes of wrongful

loss or damage to the public or to any other person.

9. Section 428 IPC is punishment for the mischief of a

specific kind. It is killing by mischief of an animal. Mere

killing by negligence or by any other act is not punishable

under Section 428 IPC. It has to be read with a word mischief

and for attracting the definition of mischief, there should be

intention attributed to the person charged for offence relating

to the mischief as well as knowledge of the act.

10. In the instant case, it has been the case of the